SCHENCK v.
249
SCHENK
v.
SAME.
Nos. 437, 438,
Argued Jan 9 and 10, 1919
Decided
[249
Mr.
John Lord O'Brian, of
Mr. Justice HOLMES
delivered the opinion of the Court.
This is an
indictment in three counts. The first charges a conspiracy to violate the
Espionage Act of
It is argued that
the evidence, if admissible, was not sufficient to prove that the defendant Schenck was concerned in sending the documents. According
to the testimony Schenck said he was general
secretary of the Socialist party and had charge of the Socialist headquarters
from which the documents were sent. He identified a book found there as the
minutes of the Executive Committee of the party. The book showed a resolution
of August 13, 1917, that 15,000 leaflets should be printed on the other side of
one of them in use, to be mailed to men who had passed exemption boards, and
for distribution. Schenck personally attended to the
printing. On [249 U.S. 47, 50] August 20 the general secretary's report said
'Obtained new leaflets from printer and started work addressing envelopes'
&c.; and there was a resolve that Comrade Schenck
be allowed $125 for sending leaflets through the mail. He said that he had
about fifteen or sixteen thousand printed. There were files of the circular in
question in the inner office which he said were printed on the other side of
the one sided circular and were there for distribution. Other copies were
proved to have been sent through the mails to drafted men. Without going into
confirmatory details that were proved, no reasonable man could doubt that the
defendant Schenck was largely instrumental in sending
the circulars about. As to the defendant Baer there was evidence that she was a
member of the Executive Board and that the minutes of its transactions were
hers. The argument as to the sufficiency of the evidence that the defendants
conspired to send the documents only impairs the seriousness of the real defence.
It is objected that
the documentary evidence was not admissible because obtained upon a search
warrant, valid so far as appears. The contrary is established. Adams v. New
York, 192
U.S. 585 , 24 Sup. Ct. 372; Weeks v. United States, 232
U.S. 383, 395 , 396 S., 34 Sup. Ct. 341, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177. The search warrant did not issue against
the defendant but against the Socialist headquarters at 1326 Arch street and it
would seem that the documents technically were not even in the defendants'
possession. See Johnson v. United States, 228
U.S. 457 , 33 Sup. Ct. 572, 47 L. R. A. ( N. S.) 263. Notwithstanding some
protest in argument the notion that evidence even directly proceeding from the
defendant in a criminal proceeding is excluded in all cases by the Fifth
Amendment is plainly unsound. Holt v. United States, 218
U.S. 245, 252 , 253 S., 31 Sup. Ct. 2
The document in
question upon its first printed side recited the first section of the
Thirteenth Amendment, said that the idea embodied in it was violated by the
conscription act and that a conscript is little better than a [249 U.S. 47,
51] convict.
In impassioned language it intimated that conscription was despotism in its
worst form and a monstrous wrong against humanity in the interest of Wall
Street's chosen few. It said, 'Do not submit to intimidation,' but in form at
least confined itself to peaceful measures such as a petition for the repeal of
the act. The other and later printed side of the sheet was headed 'Assert Your
Rights.' It stated reasons for alleging that any one violated the Constitution
when he refused to recognize 'your right to assert your opposition to the
draft,' and went on, 'If you do not assert and support your rights, you are
helping to deny or disparage rights which it is the solemn duty of all citizens
and residents of the United States to retain.' It described the arguments on
the other side as coming from cunning politicians and a mercenary capitalist
press, and even silent consent to the conscription law as helping to support an
infamous conspiracy. It denied the power to send our citizens away to foreign
shores to shoot up the people of other lands, and added that words could not
express the condemnation such cold-blooded ruthlessness deserves , &c.,
&c., winding up, 'You must do your share to maintain, support and uphold
the rights of the people of this country.' Of course the document would not
have been sent unless it had been intended to have some effect, and we do not
see what effect it could be expected to have upon persons subject to the draft
except to influence them to obstruct the carrying of it out. The defendants do
not deny that the jury might find against them on this point.
But it is said,
suppose that that was the tendency of this circular, it is protected by the
First Amendment to the Constitution. Two of the strongest expressions are said
to be quoted respectively from well-known public men. It well may be that the
prohibition of laws abridging the freedom of speech is not confined to previous
restraints, although to prevent them may have been the [249 U.S. 47,
52] main
purpose, as intimated in Patterson v. Colorado, 205
U.S. 454, 462 , 27 S. Sup. Ct. 556, 51 L. ed. 879, 10 Ann. Cas. 689. We admit that in many places and in ordinary
times the defendants in saying all that was said in the circular would have
been within their constitutional rights. But the character of every act depends
upon the circumstances in which it is done. Aikens v.
Wisconsin, 195
U.S. 194, 205 , 206 S., 25 Sup. Ct. 3. The most stringent protection of
free speech would not protect a man in falsely shouting fire in a theatre and
causing a panic. It does not even protect a man from an injunction against
uttering words that may have all the effect of force. Gompers
v. Buck's Stove & Range Co., 221
U.S. 418, 439 , 31 S. Sup. Ct. 492, 55 L. ed. 797, 34 L. R. A. (N. S.) 874.
The question in every case is whether the words used are used in such
circumstances and are of such a nature as to create a clear and present danger
that they will bring about the substantive evils that Congress has a right to
prevent. It is a question of proximity and degree. When a nation is at war many
things that might be said in time of peace are such a hindrance to its effort
that their utterance will not be endured so long as men fight and that no Court
could regard them as protected by any constitutional right. It seems to be
admitted that if an actual obstruction of the recruiting service were proved,
liability for words that produced that effect might be enforced. The statute of
1917 in section 4 (Comp. St. 1918 , 10212d) punishes conspiracies to obstruct
as well as actual obstruction. If the act, (speaking, or circulating a paper,)
its tendency and the intent with which it is done are the same, we perceive no
ground for saying that success alone warrants making the act a crime. Goldman
v. United States, 245
U.S. 474 , 477 38 Sup. Ct. 166, 62 L. ed. 410. Indeed that case might be
said to dispose of the present contention if the precedent covers all media concludendi. But as the right to free speech was not
referred to specially, we have thought fit to add a few words.
It was not argued
that a conspiracy to obstruct the draft was not within the words of the Act of
1917. The [249 U.S. 47, 53] words are 'obstruct the recruiting or enlistment
service,' and it might be suggested that they refer only to making it hard to
get volunteers. Recruiting heretofore usually having been accomplished by
getting volunteers the word is apt to call up that method only in our minds.
But recruiting is gaining fresh supplies for the forces, as well by draft as
otherwise. It is put as an alternative to enlistment or voluntary enrollment in
this act. The fact that the Act of 1917 was enlarged by the amending Act of May
16, 1918, c. 75, 40 Stat. 553, of course, does not affect the present
indictment and would not, even if the former act had been repealed. Rev. St. 13
(Comp. St. 14).